Purpose and Necessity of US FONOPs in the South China Sea
Photo Credit: The Diplomat
By Mark J. Valencia

Purpose and Necessity of US FONOPs in the South China Sea

Jul. 24, 2017  |     |  0 comments

Writing in The National Interest, Joseph Bosco, the former China country director in the Office of the Secretary of Defense, strongly criticizes China’s actions in the South China Sea, the response of the Obama administration’s Defense Department, and an article in Lawfare by Naval War College Professors Peter Dutton and Isaac Kardon. That article and Bosco’s critique thereof raises the fundamental questions of the purpose and necessity of Freedom of Navigation Operations (FONOPs) in the South China Sea.

Bosco first argues that China has undertaken a series of increasingly aggressive seizures of natural features and constructed artificial islands — as if it were the only “guilty” party in this imbroglio. But this is only one side of the story. Other claimants have committed similar transgressions. Indeed, in the 1970s and 1980s while the US, Japan, and Australia remained silent, Malaysia, the Philippines, and Vietnam occupied features there that China considered its sovereign territory. They then altered the features by adding land to them, building structures, ports, and airstrips, and allowed access for their militaries. Indeed, in China’s eyes they appropriated the largest and most useful features under spurious claims leaving only the dregs and submerged features.

China believes that it suffered by being relatively unaggressive there during this period. In China’s view, when it tried to “catch up” by occupying and building on some of the unoccupied features, the other claimants accused it of not exercising “self-restraint” and thus violating the 2002 Declaration on the Conduct of Parties in the South China Sea (DOC). But other claimants have also violated the DOC’s self-restraint provision by continuing their reclamation and construction activities after 2002.

Bosco then claims that the Obama administration’s response to China’s actions by authorizing FONOPs in the Spratlys “made matters worse.” He attacks the Obama administration for “conceding a slice of the South China Sea” by undertaking FONOPs in innocent passage, which could be interpreted as recognizing China’s sovereignty over the features. However as Dutton and Kardon point out, China has not declared baselines in the Spratlys and thus there are technically no territorial sea claims to challenge with non-innocent passage.

Bosco then goes on to praise the May 2017 USS Dewey FONOP’s non-innocent passage within 12 nm of Mischief Reef as a shining example of the “peaceful exercises of navigational freedoms.” He states that most observers here and abroad, were relieved. However, many in Asia view the use of some of the world’s most lethal surface warships by the world’s lone superpower to publicly violate the national laws of less powerful countries’ as “bullying.” Indeed, some see these FONOPs as “gunboat diplomacy” — a projection of and threat to use force. That is not “peaceful.”

The rest of Bosco’s critique focuses on the article by Dutton and Kardon. He ridicules the authors for believing — in his words — that “the Navy could only validate the FONOP by effectively announcing [it]” or that “the State Department needs to send a démarche to China.” But the US could indeed protect its legal position by declaring it and recording its objections in diplomatic statements and communiqués rather than resorting to “gunboat diplomacy.” This diplomatic option seems to be sufficient for many other nations — whose rights the US claims to be protecting. Indeed, refraining from “in your face” use of warships in favor of diplomatic protest is not legal “acquiescence.” Moreover, FONOPs have not significantly modified China’s behavior in the Spratlys.

If necessary at all, I agree with Dutton and Kardon that FONOPs should be routine and low-key wherever there are specific legal claims to be challenged.

Bosco seems particularly upset at Dutton and Kardon’s conclusion that “conflation of routine naval operations with the narrow function of a formal FONOP needlessly politicizes this important program, blurs the message to China and other states in the region, blunts its impact on China’s conduct, and makes the program less effective in other areas of the globe.”

I agree with Dutton and Kardon. But I would add that FONOPs targeting China’s claims are an exercise in hypocrisy and disingenuousness. The US has not ratified the very UN Convention on the Law of the Sea (UNCLOS) that it claims to be implementing. Although it also maintains it is adhering to and enforcing customary international law, it tacitly admits through its FONOP program that dozens of countries have excessive claims, including many friends and allies. Customary law on these issues is in flux and reflects the practice of states over a considerable time period. In other words, customary law on this issue is not set in stone, as the US and Bosco would have it. Moreover, as the US well knows, China has not hindered freedom of commercial navigation, only its provocative intelligence, surveillance, and reconnaissance (ISR) probes in China’s near-shore waters.

In this regard, the US has over time deftly conflated freedom of commercial navigation with freedom of navigation for its ISR vessels and aircraft. Indeed, the US seems to be trying to pick and choose which provisions of the “package deal” Convention it will abide by, and to interpret them to its benefit.

If necessary at all, I agree with Dutton and Kardon that FONOPs should be routine and low-key wherever there are specific legal claims to be challenged. They should not be conducted, much less “hyped up beyond proportion in the Spratlys.”

On July 2, the USS Stethem sailed within 12 nm of China’s long claimed and occupied Triton Island in the Paracels. This FONOP was essentially a repeat of the USS Curtis Wilbur FONOP in late January 2016. This raises the question of why it was necessary to repeat a FONOP which was obviously provocative to China. Indeed, China’s Defense Ministry used rather harsh language in condemning the Stethem’s actions: “the FONOP seriously damaged the strategic mutual trust between the two sides” and undermined the “political atmosphere” surrounding the development of Sino-US military ties. It warned that the Chinese military would bolster its efforts in the waters including “an increase in the intensity of air and sea patrols … according to the extent of the threat that its national security is facing”. It would seem that the more the US pursues these FONOPs, the more China will see them as a threat and will take countermeasures.

The Stethem FONOP occurred just hours before Trump called Chinese President Xi Jinping to urge China to do more to help the US with restraining North Korea. Usually one doesn’t take actions that may anger one’s counterpart just before asking a favor. Not surprisingly, Xi told Trump during the call that “negative factors” were affecting US-China relations. Indeed, this FONOP may have been counterproductive, given Trump’s “let’s make a deal” approach to foreign policy.

This raises the larger question of the purpose of FONOPs. If they are meant to send a political message, then let’s call them what they are — a projection of power and a threat of use of force — which is prohibited by the UN Charter and UNCLOS. However, current FONOPs targeting China’s claims and actions in the South China Sea, as they have been rationalized and implemented, are increasingly anachronistic, ineffective, counterproductive, unnecessarily provocative and, some would argue, an illegal exercise in futility.

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